If the husband disappears without a trace, who is obliged to spend on his wife?

Firstly:

If the husband
is missing, in other words, if there is no word of him and his whereabouts
is not known, then the wife should go to the Islamic judge, who can
stipulate a specific time period, after which he may be presumed dead,
according to whatever he sees fit. If that time period expires without any
trace of him being found, then the judge may rule that the husband is
presumed to have died, and his wife should observe the ‘iddah of one whose
husband has died, which is four months and ten days. After doing that, it
will become permissible for her to remarry.

But if the wife
knows where he is, and he has forsaken her for this length of time, then
this comes under the ruling on eelaa’ [a vow on the part of the husband who
is able to have intercourse never to have intercourse with his wife, or not
to have intercourse with her for more than four months]. In that case, the
wife or her guardian should contact him, or refer the matter to the judge,
who may force him to return to her, then if he refuses to do so, the judge
may separate them by means of one divorce (talaaq) or annulment of the
marriage.

For more
information, please see the answer to question no.
178188.

Secondly:

Maintenance of
the wife of a man who is absent or missing is due from her husband’s wealth
during the period of his absence, and during the waiting period stipulated
by the judge for the missing person to return.

If the husband
left some wealth in his wife’s possession, then she may take from it what
she needs for her maintenance, on a reasonable basis.

If his wealth is
not in her possession, or he does not have any wealth, then she should refer
the matter to the judge.

Regarding this
issue there is a difference of opinion among the fuqaha’. The view that
seems most likely to be correct is that the judge should order that her
maintenance be paid for from the husband’s wealth if there is any such
wealth, or he may give her permission to borrow money to spend on her own
maintenance, then if it becomes clear that the husband has died, what she
spent after his death is to be regarded as being part of her inheritance,
because she is not entitled to maintenance from him after he dies.

In al-Mawsoo‘ah
al-Fiqhiyyah (50/41), it says: The fuqaha’ differed regarding the
imposition on the husband of the wife’s maintenance, or the like, if he is
absent.

The Maalikis,
Shaafa‘is and Hanbalis are of the view that the wife’s maintenance must be
paid for from her husband’s wealth, whether that is imposed by the judge at
the wife’s request or otherwise. That is because of the report from the
Messenger of Allah (blessings and peace of Allah be upon him) that he said
to Hind, the wife of Abu Sufyaan: “Take (from his wealth) enough to suffice
you and your children on a reasonable basis.” In this instance, the Prophet
(blessings and peace of Allah be upon him) was making it obligatory for Abu
Sufyaan to spend on his wife’s maintenance, although he was not present at
that time.

Among the
Hanafis there are two views regarding maintenance being obligatory upon a
husband who is absent:

The first view
is that the judge may oblige her absent husband to spend on her maintenance,
so long as she requests that, because the problem is with the husband, and
the wife should not be deprived of her maintenance. This is the view of Abu
Hanifah, initially, and it is the view of an-Nakha‘i, because of the hadith
of Hind mentioned above.

The second view
is that the judge cannot impose maintenance, even if the wife requests it,
and even if the judge knows that they are a married couple, because when the
judge imposes something on one who is absent, it is like passing judgement
against him, and the Hanafis have clearly stated that it is not permissible
to pass judgement against someone who is absent, unless there is someone
present who can defend him. In this case, there is no one who can do that.
This is the final view of Abu Haneefah and it is also the view of Shurayh.

All of this
applies if the husband is absent and there is no accessible wealth that he
left behind.

But if he left
behind some accessible wealth, then it is either in the possession of the
wife or someone else.

If the wealth is
in the possession of the wife, and is a kind of wealth that may be spent on
her maintenance, then the Hanafis are of the view that she may spend on
herself without instructions to that effect from the judge, because of the
hadith of Hind, the wife of Abu Sufyaan, referred to above.

If the wealth is
in the possession of someone else, and is a kind of wealth that may be spent
on her maintenance, then the Hanafis differed about the wife taking her
maintenance, on the instructions of the judge, from her husband’s wealth
that is in the possession of other people, whether the husband left that
wealth behind as a trust or it is owed to the husband by those people. There
are two views:

Ibn Nujaym said:
If he had no wealth at all, and she asked the judge to allocate some
maintenance to her, then in our view the judge should not listen to this
case and ask for proof, because it is like passing judgement against someone
who is absent. But according to Zafar, the judge should listen to the case
(and to the wife’s proof), but he should not pass judgement concerning the
marriage, and he may issue instructions that maintenance be given to the
wife from the husband’s wealth.

If the husband
has no wealth, the judge may instruct her to borrow money, then if the
husband returns and confirms that he is married to her, the judge should
instruct him to repay the debt. End quote.

Ibn Qudaamah
(may Allah have mercy on him) said: If the wife spends on herself from her
absent husband’s wealth, then it turns out that he died before she began to
spend on herself, then what she spent should be worked out and deducted from
her inheritance, whether she spent it on her maintenance on her own
initiative or on the instructions of the judge. This is the view of
Abu’l-‘Aaliyah, Muhammad ibn Sireen, ash-Shaafa‘i and Ibn al-Mundhir, and I
do not know of anyone who disagreed with them, because she spent that which
she had no right to spend.

If there is
anything left over (of the inheritance, after deducting what she had spent
on her maintenance), then it is hers. If her inheritance did not cover it
all, and she is entitled to the second part of the mahr (dowry), or her
husband owed her a debt, then it will be counted as part of that
maintenance. If she has nothing like that, then the difference (between her
inheritance and what she spent on her maintenance) becomes a debt that she
owes. And Allah knows best.

End quote from
al-Mughni (8/208).

Conclusion:

The wife should
refer to the shar‘i judge if her husband has gone missing or is absent, and
he has not left any wealth in her possession, so that the judge can issue a
decree that she is entitled to maintenance, or he can give her permission to
borrow money.

It is not
permissible for a woman to remarry unless the judge issues her a divorce or
issues a ruling that the missing husband is to be presumed dead and she
observes the ‘iddah of one whose husband has died.

If this is in a
non-Muslim country where there are no shar‘i courts, then the Islamic
centres take the place of the shar‘i courts, so the wife should refer her
case to them, so that they can investigate the matter, and their ruling
concerning it is like the ruling of a judge. After that, she may go to the
civil court in order to obtain official papers only, not to get the ruling,
as has been explained previously in question no. 194467.

And Allah knows
best.